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Norm Coleman’s Lawyer Did Not Make Case

June 2, 2009

Monday was not a good day for Norm Coleman in Minnesota.

In his argument, Mr. Coleman’s lawyer, Joe Friedberg, did not contend that there had been fraud at work in the election, but that thousands of voters had been blocked from having their votes counted by inconsistently applied rules about accepting absentee ballots. Whether a person’s vote was counted depended “on where you sleep,” Mr. Friedberg said. “We have significant disenfranchisement.”

The presiding justice, Alan C. Page, pushed Mr. Friedberg to prove that the inconsistencies were so egregious that they went beyond what might occur in any election, and rose to the level of a constitutional violation of equal protection and due process.

Mr. Friedberg responded that the ballot problem was “horrible,” but Justice Page, who continued to press the point, did not seem satisfied with that answer.

The issue of consistent rules also played a significant role in the United States Supreme Court decision in Bush v. Gore, which decided the presidential election of 2000. In the hearing, Mr. Friedberg argued that the 2000 case showed that differences between some counties in the handling of ballots could show statewide problems.

The lawyer for Mr. Franken, Marc Elias, argued that Bush v. Gore did not apply to the issues before the justices. Differences in the acceptance of ballots statewide did not show deeper electoral problems that the Coleman team described, Mr. Elias said, but were examples of the reasonable discretion used by local officials to satisfy state requirements for the review of ballots — “the grease in the joints, so to speak, that allows the election to take place,” he said.

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